Virgo lies at anchor in Placentia Bay outside Come By Chance, Newfoundland. The Cypriot-flagged ship with a Russian crew was detained and searched by Canadian police.
Starbound, an 83-foot, steel-hull trawler, was heading to Rockland, Maine, after fishing on Georges Bank, when it was struck about 130 miles off the Massachusetts coast at about 0100 on Aug. 5, 2001. Of the fishing boat’s four-man crew, only the captain survived.
The U.S. Coast Guard has alleged that Virgo, a 541-foot Cypriot-flagged tanker with a Russian crew, hit and sank Starbound. The ship had left Boston and was bound for Newfoundland when Starbound was hit. At the request of U.S. officials, Virgo was detained after it arrived at Come By Chance, Newfoundland.
Following searches of the vessel and seizure of evidence, Canadian police arrested the three Russians – the master, the second officer and the lookout. The second officer and lookout were on watch at the time of the collision. The U.S. government has asked the Canadian government to extradite the three Russians to the United States. Pending the resolution of the extradition request, the three crew are free on bail in St. John’s, Newfoundland.
The Coast Guard outlined its evidence against Virgo and the three crewmembers in an Aug. 14 affidavit by John A. Cornett, assistant director for operations of the Coast Guard Investigative Service:
“From all of the information available, there is no reasonable explanation of why the T/V Virgo failed to take measures necessary to prevent the collision. The operation of the T/V Virgo prior to the collision only (can) be characterized as gross negligence on the part of the crew on duty and the master of the ship that presented a significant danger to other vessels in the area,” Cornett stated.
At the time of the collision, the seas were calm with patchy fog and visibility of about .5 to 1 nm, according to the captain of Starbound.
Starbound was headed northwest on autopilot at about 9 knots. The vessel’s radar was functioning, but its collision alarm was not activated, the captain told the Coast Guard. The vessel was being steered by a crewman who possessed a 100-ton master’s license and had recently completed a radar observer’s course.
Until just before the accident, the captain had been sleeping in his cabin three steps down from the wheelhouse. The two other crewmen were sleeping below.
Moments before the collision, the captain was awakened by the yelling helmsman, who said that he had tried, but had been unable to avoid an oncoming ship. Then the captain saw the bulbous bow of the approaching ship just before it struck his vessel.
Starbound sank so quickly that only the captain was able to get clear of the vessel as it went down. He managed to find and climb into the fishing boat’s liferaft. He estimated that only a minute elapsed from the moment he awoke to the sound of yelling until he clambered into the liferaft.
The crew of Virgo said they never picked up on their radar any vessel that posed a threat of collision. And they said they never heard or saw anything to indicate they had hit another vessel.
At 0046, the Coast Guard picked up a signal from Starbound’s EPIRB. Using the Automated Mutual Assistance Vessel Rescue System (AMVER), the Coast Guard identified Virgo as the vessel closest to the reported position of Starbound. But Virgo never responded to repeated requests to go to the assistance of Starbound, according to the affidavit:
“The AMVER tracking system identified T/V Virgo as the vessel closest to site of the collision. Thereafter, the Coast Guard issued an urgent marine information broadcast (UMIB) requesting that vessels in that area assist in locating the F/V Starbound. The UMIB was transmitted via NAVTEX, a required system known to be fitted aboard the T/V Virgo. The NAVTEX system is a worldwide digital message system that produces a printed emergency message aboard the vessel. The Coast Guard then attempted numerous times to directly contact the T/V Virgo by radio and satellite phone beginning from about 0200 to about 0500. The T/V Virgo did not respond to any of the attempts.”
The vessel’s logs indicate that it was traveling on autopilot at between 12.5 and 14.6 knots on an ENE course between 0000 and 0200 on the night of the sinking. The Coast Guard has estimated that Virgo’s course would have taken it within .7 nm of the reported location of Starbound’s EPIRB.
The affidavit asserts that the rules governing navigation in an area of restricted visibility applied because of the fog on the night of the collision. Consequently, Virgo was obligated to proceed at a safe speed suited to the conditions.
The circumstances qualified as a crossing situation, according to the affidavit, in which Virgo would have been the give-way vessel.
Based on all the information available, including logs and statements from Virgo’s crew that it was not aware of the presence of Starbound, “the only conclusion that can be made is that the T/V Virgo did not take any action to avoid collision as was required under Colregs (Convention on the International Regulations for Preventing Collisions at Sea),” Cornett wrote in his affidavit.
Cornett said that Virgo had also neglected to post a lookout forward on its bow, a failure Cornett characterized as “gross disregard of its obligations,” in view of the high number of fishing vessels that operate in the area. In addition, he said that the ship was not traveling at a safe speed for the conditions.
Cornett also faulted Virgo for failing to detect Starbound on its radar. “In my opinion, the T/V Virgo would have been able to track the course of the F/V Starbound from at least 12 nm away, and therefore had more than enough time to make the necessary changes in course or speed to avoid the collision as it was required to do,” Cornett stated in the affidavit.
Cornett’s affidavit does not cite any inappropriate behavior by Starbound, noting that the rules “would only require F/V Starbound to take action when she found herself so close that a collision could not be avoided by any action taken by T/V Virgo alone.”
When Virgo was examined by the authorities following its arrival in Newfoundland, some green paint scrapes were found on its hull. Starbound’s hull was painted a distinctive teal color. Initial indications were that the paint on Virgo’s hull closely resembled the paint on Starbound. Chemical tests were performed to determine if the paint on Virgo’s hull was identical to Starbound’s. Those results have not yet been made public.
The Virgo case is likely to take months, or even years, to resolve. First, the extradition proceedings have to run their course. The extradition hearing may not be held until sometime next year. Even if the Canadians agree to extradite the Russians, it is by no means certain that they will be put on trial in the United States. That’s because under international law, the United States may not have the legal authority to try them on criminal charges.
Dr. Edgar Gold, past president of the Canadian Maritime Law Association, maintains that the United Nations Convention on the High Seas contains a provision that gives jurisdiction in criminal cases in international waters either to the country of the accused or to the flag nation. In this case that would mean that Russia or Cyprus – but not the United States – would have the right to try the men.
Both the United States and Cyprus are signatories to the convention, he said.
Gold served as an advisor to Cyprus when Virgo emerged as a suspect in the sinking of Starbound, but he is no longer involved in the case.
“Even if the Russians are guilty as hell, there still is a jurisdiction issue,” Gold said. “As soon as the word criminal is mentioned, international law provides for jurisdiction of either the flag state or the nation of the crewmember being accused.”
That provision is meant to protect mariners in international waters from arrest by police in neighboring countries. U.S. officials may very well fear that if the United States asserts jurisdiction in this case, other countries may try to assert jurisdiction over U.S. mariners in international waters.
“I imagine the U.S. State Department got a little bit of cold feet on this,” Gold said. “They didn’t have the law totally on their side.”
There is also the question of whether the Bush Administration will try to push this case against Russian nationals at a time when Russia’s cooperation is being sought for the campaign against terrorism. The case has already assumed some aspects of an international dispute. Russian diplomats protested the methods used to investigate the ship and the treatment of the crew. Heavily armed Canadian police at one point forced the crew to leave the ship.
“I think the whole thing went a little off the rails,” Gold said.